Online Journal of the Hudson Valley Coalition for Life.
"Every human being is called to solidarity in a world battling between life and death" - Ignacio Ellacuria, Jesuit martyr in El Salvador

February 15, 2012

A sraightforward and easy to understand explanation as to why the Obama/HHS contraception/sterilization/abortion mandate is unconstitutional. The op ed is not very long - 16 paragraphs - but very comprehensive.

The birth-control coverage mandate violates the First Amendment's bar against the "free exercise" of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.

That case limited the protections available under the First Amendment's guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test.

The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.

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The refusal, for religious reasons, to provide birth-control coverage is clearly an exercise of religious freedom under the Constitution. The "exercise of religion" extends to performing, or refusing to perform, actions on religious grounds—and it is definitely not confined to religious institutions or acts of worship. Leading Supreme Court cases in this area, for example, involve a worker who refused to work on the Sabbath (Sherbert v. Verner, 1963) and parents who refused to send their teenage children to a public high school (Wisconsin v. Yoder, 1972).

In the high-school case, the Supreme Court found that even a $5 fine on the parents substantially burdened the free exercise of their religion. Under the Patient Protection and Affordable Care Act, employers who fail to comply with the birth-control mandate will incur an annual penalty of roughly $2,000 per employee. So it is clearly a substantial burden.

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Does the mandate further the governmental interest in increasing cost-free access to contraceptives by means that are least restrictive of the employer's religious freedom? Plainly, the answer is no. There are plenty of other ways to increase access to contraceptives that intrude far less on the free exercise of religion.

Health and Human Services itself touts community health centers, public clinics and hospitals as some of the available alternatives; doctors and pharmacies are others. Many of the entities, with Planned Parenthood being the most prominent, already furnish free contraceptives. The government could have the rest of these providers make contraceptive services available free and then compensate them directly. A mandate on employers who object for religious reasons is among the most restrictive means the government could have chosen to increase access.

The mandate also fails the "compelling government interest" test. Given the widespread availability of contraceptive services, and the far less restrictive other ways to increase their availability, the government can hardly claim it has a "compelling" interest in marginally increasing access to birth control by requiring objecting employers to join in this effort.

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In an effort to rally its base in the upcoming November election, the Obama administration seems more interested in punishing religiously based opposition to contraception and abortion than in marginally increasing access to contraception services. ...

... the birth-control mandate violates both statutory law and the Constitution. The fact that the administration promulgated it so flippantly, without seriously engaging on these issues, underscores how little it cares about either.

Richard Land, a pro-life leader who is a top official with the South Baptist Church, said the same thing the day prior.

“When it comes to abortifacients, and many birth-control methods are abortifacients,” Land said, this mandate is “reprehensible in its demands for people to violate their conscience.” “We are not going to do this. We have a First Amendment right to freedom of conscience, and we’re going to defend it. If we have to defend it by going to jail, so be it.”

Rev. Matthew Harrison is another Protestant leader who is opposed to the mandate.

“We have a full-tilt assault on religion, especially full creedal Christians, right now,” he said. “This is a fundamental attack on the Roman Catholic Church’s ability to be in the public square, being in partnership with the government providing for the needy.”

He says the “ultimate goal is to drive religious people out of public life in this nation and out of the reception of any kind of funding or partnership with government for good in society.”

February 11, 2012

Yesterday's announcement by the President that all insurance companies simply had to make contraception, et al, free to everyone has pleased some of the lap dog Catholics who support him, like EJ Dionne and Sister Carol Keehan. It is most charitable to say these people are merely stupid and not trying to actually undermine their Church.

... you almost have to admire the absurdity of the new plan President Obama floated yesterday: The government will now write a rule that says the best things in life are "free," including contraception. Thus a political mandate will be compounded by an uneconomic one—in other words, behold the soul of ObamaCare.

Under the original Health and Human Services regulation, all religious institutions except for houses of worship would be required to cover birth control, including hospitals, schools and charities. Under the new rule, which the White House stresses is "an accommodation" and not a compromise, nonprofit religious organizations won't have to directly cover birth control and can opt out. But the insurers they hire to cover their employees can't opt out. If that sounds like a distinction without a difference, odds are you're a rational person.

Say Notre Dame decides that its health plan won't cover birth control on moral grounds. A faculty member wants such coverage, so Notre Dame's insurer will then be required to offer the benefit as an add-on rider anyway, at no out-of-pocket cost to her, or to any other worker or in higher premiums for the larger group.

But wait. Supposedly the original rule was necessary to ensure "access" to contraceptives, which can cost up to $600 a year as Democratic Senators Jeanne Shaheen, Barbara Boxer and Patty Murray wrote in these pages this week. The true number is far less, but where does that $600 or whatever come from, if not from Notre Dame and not the professor?

Insurance companies won't be making donations. Drug makers will still charge for the pill. Doctors will still bill for reproductive treatment. The reality, as with all mandated benefits, is that these costs will be borne eventually via higher premiums. The balloon may be squeezed differently over time, and insurers may amortize the cost differently over time, but eventually prices will find an equilibrium. Notre Dame will still pay for birth control, even if it is nominally carried by a third-party corporation.

This cut-out may appease a few of the Administration's critics, especially on the Catholic left—but only if they want to be deceived again, having lobbied for the Affordable Care Act that created the problem in the first place. The faithful for whom birth control is a matter of religious conviction haven't been accommodated at all. They'll merely have to keep two sets of accounting books.

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Yesterday's new adventure in damage control and bureaucratic improvisation makes the compliance problem much worse. There is simply no precedent for the government ordering private companies to offer a product for free, even if they recoup the costs indirectly. Why not do that with all health benefits and "bend the cost curve" to zero? The shape of the final rule when the details land in the Federal Register is anyone's guess, including the HHS gnomes who are throwing it together on the fly to meet a political deadline.

One major problem will be how the rule applies to large organizations that self-insure. Arrangements in which an employer pays for care directly and uses insurers to manage benefits and process claims (not to take on insurance risk) account for the majority of the private market. In these cases there isn't even a free lunch to pretend exists.

And the last point is a major one - most large organizations self-insure and use the insurer to manage and administrate benefits, so the insurer only pays on large claims (what's called a stop loss). The small claims - say under $25,000 or $50,000 - are paid by the organization themselves, from a fund they've set aside.

Statement from Dominican Sisters of St. Cecilia Congregation February 6, 2012

Health Insurance Mandate: Religious Freedom and

Conscience Rights in United States

Seriously Threatened

The United States, from its very beginnings, has been an example of true human freedom and religious liberty for all. During its history, in fact, our nation has sheltered countless people who came here from countries where their basic freedoms were either in danger or being denied altogether. Sadly, Americans now face a similar threat. At this moment, which is strange and new to us, our own religious freedom and rights of conscience are in jeopardy. Sharing the very serious concerns expressed by Pope Benedict XVI and by our U.S. bishops in recent weeks, the Dominican Sisters of St. Cecilia will set aside nine days of prayer and fasting during the month of February, asking Our Lady to intercede for our country.

Background

The Holy Father noted in a recent address to U.S. Bishops visiting Rome that Catholics in the United States face "grave threats to the Church's public witness" and "attempts to limit the most cherished of American freedoms, the freedom of religion." He was responding to the American bishops' concerns about "concerted efforts...to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices" and the "tendency to reduce religious freedom to mere freedom of worship." Pope Benedict stressed that it is imperative that "the entire Catholic community in the United States" recognize and counter these threats.

While faced with multiple threats to religious liberty, the most immediate concern is a January 20, 2012 ruling by the United States Department of Health and Human Services (HHS), made in conjunction with the recently approved healthcare law. In identifying the "preventive services" that must be covered in most health insurance plans, this HHS mandate specifies "all FDA approved forms of contraception," including sterilization and some abortifacients. Although the ruling does allow an exemption for certain religious organizations, the exemption is so narrow that most religious institutions - including most Catholic schools, colleges and universities, hospitals, and charitable agencies - do not meet the criteria.

As a result of this ruling, religious employers will be required to pay for forms of health insurance coverage that violate both their religious beliefs and their rights of conscience. This would be the case with employers at both Catholic and many other religiously-affiliated institutions.

This decision was immediately denounced by the United States Conference of Catholic Bishops as well as numerous individual bishops and other religious leaders, both Christian and non-Christian. According to the terms of the mandate, most new and renewed health plans will be required to include the aforementioned services beginning August 1, 2012. Nonprofit employers who, because of their religious beliefs, do not currently provide contraceptive coverage, may have an additional year, until August 1, 2013, to comply with the new law; but they must certify that they qualify for delayed implementation. In the meantime, they must provide their employees with specific information about sites where "contraceptive services" can be obtained. Thus religious employers are obliged by law to cooperate in actions which they hold in conscience to be intrinsically evil.

Cardinal-Designate Timothy M. Dolan, President of the United States Conference of Catholic Bishops, has termed the HHS decision "literally unconscionable." The Washington Post, in a January 22 editorial, noted that the final HHS ruling "fails to address the fundamental problem of requiring religiously affiliated entities to spend their own money in a way that contradicts the tenets of their faith."

Numerous bishops and other religious leaders have continued to issue public protests against the HHS decision. The bishops have vowed to continue fighting the mandate, urging their people to do the same.

The Dominican Sisters of St. Cecilia Congregation strongly share the concern of our bishops and other religious leaders who have expressed opposition to this decision of the HHS. We are providing in this newsletter links to statements and articles giving more complete information about the implications of this ruling, one which poses an unprecedented threat to freedom of religion and conscience in our country.

United in Prayer

We beg God for the preservation of our great and beautiful country, and of the freedom we have all enjoyed and been privileged to share with others. The Dominican Sisters of St. Cecilia invite you to join with us in a novena of prayer and fasting, asking Mary, Patroness of the United States of America, to implore God's loving mercy on us at this critical time. The novena will begin February 11 and end February 19, 2012. The sisters will be praying the following prayer each of the nine days.

Act of Consecration of the United States to the

Immaculate Heart of Mary

Most Holy Trinity: Our Father in heaven, who chose Mary as the fairest of your daughters; Holy Spirit, who chose Mary as your spouse; God the Son, who chose Mary as your Mother; in union with Mary, we adore your majesty and acknowledge your supreme, eternal dominion and authority.

Most Holy Trinity, we put the United States of America into the hands of Mary Immaculate in order that she may present the country to you. Through her we wish to thank you for the great resources of this land and for the freedom, which has been its heritage. Through the intercession of Mary, have mercy on the Catholic Church in America. Grant us peace. Have mercy on our president and on all the officers of our government. Grant us a fruitful economy born of justice and charity. Have mercy on capital and industry and labor. Protect the family life of the nation. Guard the precious gift of many religious vocations. Through the intercession of our Mother, have mercy on the sick, the poor, the tempted, sinners - on all who are in need.

Mary, Immaculate Virgin, our Mother, Patroness of our land, we praise you and honor you and give our country and ourselves to your sorrowful and Immaculate Heart. O Sorrowful and Immaculate Heart of Mary, pierced by the sword of sorrow prophesied by Simeon, save us from degeneration, disaster and war. Protect us from all harm. O Sorrowful and Immaculate Heart of Mary, you who bore the sufferings of your Son in the depths of your heart, be our advocate. Pray for us, that acting always according to your will and the will of your divine Son, we may live and die pleasing to God. Amen.

Imprimatur, Patrick Cardinal O'Boyle, Archbishop of Washington, 1959, for public consecration of the United States to the Immaculate Heart of Mary;